On 8 May 2017, the Prosecutor of the International Criminal Court (ICC), Ms. Fatou Bensouda, addressed the members of the United Nations Security Council (UNSC) to deliver her Office’s thirteenth report on the situation in Libya pursuant to Resolution 1970. In February 2011, the UNSC decided to refer the situation in the Libyan Arab Jamahiriya to the Prosecutor of the Court.[1] The referring Resolution invites the Prosecutor to address the UN Security Council every six months.[2] In the recent Prosecutor’s Report, the UNSC is briefed about the developments in the Prosecutorial activities regarding the situation in Libya.

The Report, inter alia, referrers to the emerging migrant crisis in Libya that has captured the Prosecutor’s attention. In this regard, the Prosecutor insists that her office “continues to collect and analyze information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya”.[3] Libya has been seen as the gatekeeper of Africa’s migrant crisis.[4] Moreover, the Prosecutor labels Libya as a “marketplace for the trafficking of human beings”.[5] Fatou Bensouda, in her report, refers to those reports that outline “thousands of vulnerable migrants, including women and children, are being held in detention centers across Libya in often inhumane conditions”.[6] According to the available information, “crimes, including killings, rapes and torture, are alleged to be commonplace”.[7]

Based on the current alarming circumstances affecting the migrants in Libya, the Prosecutor notifies the UNSC of “carefully examining the feasibility of opening an investigation into migrant-related crimes in Libya should the Court’s jurisdictional requirements be met”. [8] This part of the Prosecutor’s report, however, calls into question the legal possibility of opening an investigation into the migrant-related crimes in Libya. The Prosecutor raises the question of feasibility that is a matter of availability of a situation. Determining availability requires taking into account the operational factors that are necessary for conducting an effective prosecution such as access to evidence.[9] However, before considering this practical question, a normative inquiry should be tackled: Does the Court have any jurisdiction to open an investigation into the migrant-related criminal theme.

I believe that the Court lacks a jurisdictional basis to investigate the migrant-related crimes. The presumption of having jurisdiction over all those serious crimes committed on the territory of Libya is based on the misunderstanding of the situation notion in the Rome Statute sense. The notion of ‘situation’ is a unique concept in the architecture of the Court. The point of departure in the Court’s functioning is a situation, whereas the domestic and national systems that deal with a case. Situations lack the specificity that cases have. A case consists of two components: a criminal conduct and a person who is responsible for perpetrating one or more crimes. However, a situation is a general context in which cases are formed. The novelty of the situation notion, in addition to the silence in law regarding the definition of this notion has resulted in misunderstanding of this important concept in the Rome Statute.

A situation compromises two constituent elements, namely contextual element and jurisdictional parameters. The contextual element of a situation is a crisis. A ‘situation of crisis’ is the factual dimension of the situation notion. This element is an objective and concrete crisis in which one or more crimes within the Court’s jurisdiction occur. A situation of crisis is comparable to the ‘state of emergency’ that is referred to in international human rights law. Public emergency refers to “an exceptional situation of crisis or emergency, which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed’’.[10] In the ICC legal system, the crimes referred to in Article 5 of the Rome Statute consist of two components: contextual element and underlying acts.

The contextual elements of the crimes within the Court’s jurisdiction can be considered as the general context of a situation in which those crimes are committed. For instance, a widespread or systematic attack against the civilian population in furtherance of a policy is the constituent context of crimes against humanity.[11] An armed-conflict, either international or non-international, constitutes the context in which war crimes are committed.[12] These contexts direct to the contextual element or the crisis that constitutes a major pillar of a situation in the Rome Statute sense. For instance, the situation in Uganda is formed in the context of an armed conflict that was caused by the rebellion of the LRA against the central government.[13] Since 1986, a civil war in Northern Uganda between the Ugandan government and the Lord Residence of Army, a rebel force infamous for its abduction and enlistment of children, has killed tens of thousands of civilians.[14]

Another formative pillar of a situation is its jurisdictional border. The Court exercises its jurisdiction over a situation of crisis within a specific time and location and over specific crimes. These aspects build up the jurisdictional parameters of a situation. Exercising jurisdiction at the ICC is situation-oriented. It means that the Prosecutor first needs to identify a situation to open a preliminary examination and later to initiate an investigation. A situation is an object for conducting preliminary examination and investigation. Without a determinate situation, there is no way to open an investigation. A situation is a framework within which the Court can exercise its statutory powers. The other side of this coin is that the Court is not permitted to exercise its jurisdiction over matters outside of a situation. The prominent role of identification of a situation in the Court’s functioning requires designing an independent stage in the procedure of the ICC between the trigger mechanism and the preliminary examination stage.[15]

Location and territorial jurisdiction is a part of a situation. However, it should be borne in mind that the territorial jurisdiction in the Rome Statute has an alternative, namely the personal jurisdiction. Hence, the Court’s policy is to give priority to those situations that are based on territorial jurisdiction instead of personal jurisdiction. In determining the territorial aspect of a situation, however, there is a risk of a major confusion. A situation happens on a territory, but a situation is not necessarily a country-oriented notion. Exercising jurisdiction over a situation that has affected a part of a territory does not imply that the Prosecutor can investigate all other crimes unrelated to the given situation that happen in other parts of a country. In addition, the situation-oriented investigation does not limit the Prosecutor to the territory of one country.

If a crisis goes beyond the borders of a country, the Court’s jurisdiction extends to other territories. Indeed, the main dividing line in drawing up a situation is contextual element, rather than the territorial component. To avoid a misperception, it is recommendable that the Prosecutor does not call a situation merely by a territory, but it is better to call it, at least, by adding another constituent element to the territory element, such as the situation of ISIS in Iraq and Syria. Legally speaking, it is possible that two or more situations are identified within a single country and in the same territory. The situation in the Central African Republic is an example here. The Court is investigating two distinct situations in one country.[16]

Likewise, referring a situation is not equal to referring a country. This difference is of great importance in the case of non-member States, such as the situation in Libya. The ICC, as a treaty-based international organisation, lacks any jurisdiction over territories and nationals of non-member States. However, the Rome Statute has authorised the UNSC to refer a situation of a non-member State to the OTP. In this scenario, the Court’s jurisdiction extends to the territory and nationals of the situation country. However, it should be borne in mind that the UNSC refers a situation, not a country. The authorities of the UNSC is regulated by the Rome Statute.

The Rome Statute explicitly refers to the referral of a situation made by the UNSC. Therefore, the Security Council’s referrals should be in conformity with the Rome Statute. The ICC is an independent organisation, and it has its own legal system that should be respected by others, including the UNSC. The Council cannot refer something that is not a situation. Limiting the Court’s jurisdiction to a situation aims at realising two goals: impartiality of the Court by avoiding one-sided prosecutions, and preserving the complementary role of the Court by avoiding acting as a replacement for the national systems.

On 15 February 2011, the anti-government rallies were held in Benghazi by protesters angered by the arrest of a human rights lawyer, Fethi Tarbel.[17] This event marked the beginning of the uprising that was suppressed violently by the Gaddafi regime. The February Revolution, however, resulted in the overthrowing of the regime. Following escalating violence in Libya, the UNSC referred “the gross and systematic violation of human rights, including the repression of peaceful demonstrators” to the Office of the Prosecutor since 15 February 2011.[18]

The referring Resolution makes it clear that the crisis that constituted the situation in Libya was the repression of the Libyan revolution. The UNSC referred the situation in Libya in the middle of an ongoing crisis. For this reason, the Council did not put an end to the temporal jurisdiction of the Court. As a permanent organisation, the ICC is able to monitor a situation as long as it is ongoing. The situation of Libya is open-ended only in terms of timing. It does not change other jurisdictional limits of the Court. The UNSC has permitted the Court to activate its jurisdiction over a specific crisis and situation. The UNSC did not give a carte blanche to the Prosecutor of the Court in order to intervene in all crimes and crisis in Libya. Referrals are situation-oriented. In addition, as to the situation in Libya, it should be taken into account that exercising the Court’s situation over a non-member State is an exception. Consequently, the scope of the Court’s jurisdiction in such an exceptional situation should be interpreted in a narrow way.

The scope of the situation in Libya is also deductible from its cases. There is a nexus between a situation and those cases arising from it. The Court may exercise its jurisdiction exclusively on those cases that are linked to a situation under its jurisdiction. A case within a territory without any link to the existing situation in the territory may direct to another situation in the same territory. In the Libya situation, both cases against Gaddafi and Al-Senussi before the Court were challenged by the government of Libya. In the complementarity assessment of these two cases, the Chambers of the Court conducted an assessment based on the ‘substantially same conduct’ test. To make a comparison to determine whether the Libyan government would deal with the same conduct before the Court, the Pre-Trial Chamber of the Court clarified the conduct before the Court.

By adopting a flexible approach in the complementarity assessment, the PTC defined the conduct constituting the case against Al-Senussi and Gaddafi in a way that represents the contextual element of the situation in Libya in general. For instance, as to the Al-Senussi case, based on the warrant of arrest and its corresponding Article 58 decision, the Pre-Trial Chamber concluded that “the present case before the Court concerns the individual criminal responsibility of Mr Al-Senussi for killings and acts of persecution by reason of their (real or perceived) political opposition to the Gaddafi regime carried out on many civilian demonstrators and political dissidents, allegedly committed directly or through the Security Forces during the repression of the demonstrations taking place in Benghazi from 15 February 2011 until at least 20 February 2011 and as part of a policy designed at the highest level of the Libyan State machinery to deter and quell, by any means, the revolution against the Gaddafi regime occurring throughout Libya”. According to the Chamber, “this constitutes the relevant conduct alleged in the proceedings before the Court that defines the scope of the criminal case against Mr Al-Senussi”.[19]

In the latest case in the situation in Libya, namely the case against Al-Tuhamy, the situation within which the Prosecutor prosecutes the crimes in Libya has been clarified. According to the PTC, “the Chamber finds that the evidence establishes reasonable grounds to believe that between 15 February and 24 August 2011, in furtherance of a policy designed by the Libyan State to quash the political opposition to the Gaddafi regime by any means, including lethal force and by arresting, detaining, torturing and abusing perceived political opponents to the Gaddafi regime, an attack within the meaning of article 7(1) of the Statute was carried out by the Libyan military, intelligence and security agencies (the “Security Forces”) against the civilian population, including by arresting, detaining and mistreating perceived opponents of the Gaddafi regime”.[20]

Now, one can cast doubt about the Court’s jurisdiction over the migrant-relevant crisis in Libya. The migrant crisis is manifestly out of the crisis of repression of anti-Gaddafi movement that emerged in 2011 and resulted in the UNSC Resolution 1970. The situation in Libya that has been referred to the Prosecutor is based on a non-international armed conflict between governmental forces and rebel forces in 2011.[21] A conflict has, at least, two parties. Migrants do not fall within the category of parties to the 2011 Libyan conflict. In addition, crushing the migrants does not have any nexus to policies of the Gaddafi regime. Therefore, the recent crisis is manifestly outside of the Court’s jurisdiction, unless the UNSC refers a new situation to the Office of the Prosecutor.

Mohammad Hadi Zakerhossein is a PhD student in international criminal law at Tilburg Universityand founder of the Iranian Center for the International Criminal Law.

[15] For more details see: Mohammad Hadi Zakerhossein, To Bury a Situation Alive – A Critical Reading of the ICC Prosecutor’s Statement on the isis Situation, International Criminal Law Review, 2016, vol. 16.

[16] In 2005, the government of the Central African Republic referred the situation of crimes within the jurisdiction of the Court committed anywhere on the territory of the Central African Republic (CAR) since 1 July 2002. Upon this referral, the Prosecutor decided to open an investigation focusing on crimes allegedly committed in 2002 and 2003. While this situation was under investigation, the second Prosecutor of the Court, identified a new situation, unrelated to the situation previously referred to the ICC by the CAR authorities in December 2004. Consequently, she decided to open the preliminary examination.[16] The new situation was called the situation in CAR II.

Mohammad Hadi Zakerhossein holds a master in criminal law from Tehran University. He conducted his PhD research at Tilburg University.

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